OHA wise to walk away from KGMB venture

THE ISSUE

Office of Hawaiian Affairs have voted against making a bid to purchase KGMB-TV.

THE state Office of Hawaiian Affairs flirted with danger in considering a move to buy KGMB-TV before backing away. Such a purchase would have been an unprecedented entry by a government agency into ownership of commercial television and could be in violation of federal and state law.

OHA trustees agreed last week to make a conditional offer to purchase the station from Indiana-based Emmis Communications Corp., which is asking $40 million, then voted 4-2 Thursday to reject the venture.

Although Federal Communications Commission rules appear not to specifically address the issue, Congress, in creating the commission and its 1927 predecessor, the Federal Radio Commission, implicitly disallowed government ownership of commercial broadcast stations.

The U.S. Supreme Court addressed the issue in a 1973 First Amendment ruling. "As we have seen, with the advent of radio a half-century ago," wrote then-Chief Justice Warren Burger, "Congress was faced with a fundamental choice between total government ownership and control of the new medium -- the choice of most other countries -- or some other alternative. Long before the impact and potential of the medium was realized, Congress opted for a system of private broadcasters licensed and regulated by the government.

"The legislative history suggests that this choice was influenced not only by traditional attitudes toward private enterprise," Burger added, "but by a desire to maintain for licensees, so far as consistent with necessary regulation, a traditional journalistic role."

But OHA is not just any government agency, the state argued in Rice v. Cayetano. In establishing OHA in 1978, the state Constitutional Convention said it intended that it be "independent from the executive branch and all other branches of government." The Supreme Court rejected that argument in 2000 in ruling that OHA's Hawaiians-only restriction on voting for trustees was racially discriminatory.

"Although it is apparent that OHA has a unique position under state law," Justice Anthony Kennedy wrote, "it is just as apparent that it remains an arm of the state."

Concerns about government-owned television stations and networks have been raised around the globe, mostly -- but not only -- in developing countries. The British Broadcasting Corp. is said to have an unfair advantage over other media companies, and Russian President Vladimir Putin is accused of manipulating people and distorting the truth by seizing control of television networks.

Congress wisely established a system for government to own the airwaves but not the commercial broadcasting networks or stations. OHA's purchase of KGMB would have impaired that system and, if allowed, invited incumbent governments with fat budgets to outbid private companies in buying other stations.